Obama Faces Court Test Over Detainee

Wednesday

Jul 29, 2009 at 4:18 AM

The case of a young detainee captured in Afghanistan has turned into a showdown between the courts and the executive branch over power to release prisoners.

The fate of one of the youngest detainees at the Guantánamo Bay prison is emerging as a major test of whether the courts or the president has the final authority over when prisoners there are released.

After a federal judge said earlier this month that the government’s case for holding the detainee, Mohammed Jawad, was “riddled with holes,” the Obama administration conceded defeat and agreed that Mr. Jawad would no longer be considered a military detainee. But the administration said it would still hold him at the prison in Cuba for possible prosecution in the United States.

On Tuesday, Mr. Jawad’s lawyers attacked that position, arguing that the government had given up any authority to hold him. “Enough is enough,” the lawyers said in legal papers that urged the judge, Ellen Segal Huvelle, to send him back to Afghanistan, which has requested his return.

Within hours, the judge scheduled a hearing for Thursday morning in Federal District Court in Washington, setting up what could be a pivotal battle over the reach of the Supreme Court’s ruling last year that granted Guantánamo detainees the right to contest their imprisonments in habeas corpus suits.

Richard H. Pildes, a constitutional law professor at New York University, said the case could be “the ultimate confrontation” in the courts over Guantánamo.

Mr. Pildes noted that after long battles over whether detainees could use the centuries-old habeas corpus principle that prisoners can challenge their detention, the Supreme Court decision provided few guidelines for the courts.

In the showdown over Mr. Jawad, Judge Huvelle, who was appointed by President Bill Clinton, seems poised to assert the courts’ authority to release detainees who are not legally held, while the Obama administration has suggested it can continue detention when it claims it must.

For some former Bush administration officials, the fight over Mr. Jawad’s fate is a bittersweet moment in which the new administration is wrestling with some of the arguments that were advanced for years by Bush officials about the risks of opening the courts to the detainees.

The Obama administration must decide before Thursday’s court session whether to make Mr. Jawad’s habeas suit a test case, said Charles D. Stimson, who was a Defense Department official until 2007 and is now a senior legal fellow at the conservative Heritage Foundation.

“This is the Obama administration’s time to decide,” Mr. Stimson said, “what they will do when a habeas judge orders a person released, but they can’t in good conscience let him go.”

American officials say Mr. Jawad, who was a teenager when he was captured, threw a hand grenade that seriously wounded two American servicemen and their Afghan translator in an attack in Kabul in 2002.

Though Judge Huvelle said earlier this month that there was “no evidence” against Mr. Jawad, the release of a detainee facing such accusations would intensify the pressures from critics of the president’s plan to close the detention center.

Judges in the Federal District Court in Washington are in the early stages of ruling on some 200 cases of Guantánamo detainees. Several have expressed skepticism about many of the government cases, ruling for the government so far in 5 cases and for detainees in 26.

Of the 26 detainees who have won their cases, though, 17 remain at Guantánamo. But Mr. Jawad’s case differs from most of those cases in a critical respect, his lawyers argue. In most of the 17 cases, the administration says it has been unable to find countries willing to take the men that will provide adequate human rights and security assurances. But Afghanistan has said it wants Mr. Jawad returned immediately.

One of Mr. Jawad’s lawyers, Jonathan Hafetz of the American Civil Liberties Union, said that the Obama administration’s focus on civilian prosecution as their habeas corpus case grew troubled seemed reminiscent of the Bush administration’s repeated changes of strategy in the courts.

Mr. Hafetz said Mr. Jawad was hopeful but bewildered. “Every time he is on the verge of winning and proving his innocence, the government seeks to change the rules of the game,” Mr. Hafetz said.

Judge Huvelle’s terse order on Tuesday did not explain her plans. But in angry remarks from the bench on July 16, she expressed suspicion that the government might try to keep her from ordering Mr. Jawad released. She said she would not delay her case so the government can “pull this rug from under the court at the last minute” by moving Mr. Jawad into the civilian criminal justice system.

A military judge found last year that much of the evidence against Mr. Jawad consisted of statements he gave after he was tortured by Afghan officials. In Judge Huvelle’s July 16 hearing, Department of Justice lawyers said the government would no longer rely on those statements to justify Mr. Jawad’s detention.

In a filing on Friday, the Obama administration said there were “multiple eyewitness accounts that were not previously available” and other evidence, including a witness who “alleges that he saw Jawad throw a grenade that wounded two American service members.”

Mr. Jawad has also been fighting attempted murder charges in the military commission system at Guantánamo. But there, too, the government has met obstacles, including a military judge’s decision that banned prosecutors from using Mr. Jawad’s statements to interrogators.

The military judge, Col. Stephen R. Henley, found that Afghan officials had threatened to kill Mr. Jawad and his family if he did not confess to the attack. Colonel Henley also said Mr. Jawad had been abused at Guantánamo, finding that he had been isolated, beaten, kicked and subject to sleep deprivation.

Mr. Jawad’s age is unknown, but Afghan officials have said he may have been 12 or younger when he was detained. He attempted suicide in Guantánamo in 2003.

Mr. Jawad’s military lawyer, Maj. David J. R. Frakt, said the issue facing the administration on Thursday was likely to be clear cut. “The question,” Maj. Frakt said, “is going to be: Is the administration going to accept the rulings of the judiciary or not?”

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